Questions Mukasey Must Answer

The nomination of Michael Mukasey to head the Justice Department after the long-overdue resignation of Alberto Gonzales is drawing initial bipartisan praise. The retired judge is seen as someone who can restore a measure of the integrity the department lost under Gonzales, and who can demonstrate a measure of independence from the White House.

Yet while Mukasey provides some hope for improvement at a shattered agency, Congress must not simply rubber stamp his nomination. This is still the Bush Administration, which has shown no sign of changing any of the policies that led to the disintegration at the DOJ. The nomination – and the administration’s dealings with the Justice Department – continue to demand the toughest scrutiny and most vigilant oversight.

As Mukasey meets with Senators individually, and when he appears before the Senate Judiciary Committee, there are hard questions he must be asked about the politicization of the Justice Department and the abuses of fundamental rights in the name of the war on terror. Senators should demand that he cooperate fully with ongoing investigations of the scandals at the department and disclose materials that the White House has so far been reluctant to release.

Here are a few important questions for the nominee in these six key issue areas:
- The political firing of U.S. attorneys
- Indefinite detention of Guantanamo detainees and terror suspects
- Civil rights and access to the ballot box
- Warrantless wiretapping of American citizens
- The review of judicial nominees and his own participation in presidential politics

Firing U.S. Attorneys
The Justice Department under Gonzales worked with the White House to fire nine U.S. attorneys for a variety of partisan and political reasons, as documented by news media reports and congressional testimony. Will the new attorney general cooperate fully with Congressional investigations into the department’s involvement with the firings? Will he release all documents and records pertaining to the scandal and comply with Congressional subpoenas? Will he pledge to resist any White House efforts to hire or fire U.S. attorneys for partisan purposes?

Indefinite Detention of Detainees
Since 2002, hundreds of foreign nationals captured abroad in the “war on terror” have been held in detention at Guantanamo Bay, along with suspects arrested in the United States on terrorism charges. Some have been held without review, hearing or access to an attorney for years. Gonzales was the architect of many of the administration’s detention policies. He even testified in Congress that the Constitution does not guarantee these foreign detainees habeus corpus rights, flying in the face of hundreds of years of legal thought. While Mukasey ruled in the Padilla case that detainees had a right to counsel, he also ruled that the President could indefinitely detain American citizens captured on U.S. soil as terror suspects without charging them with a crime, but his ruling was overturned. Where does Mukasey stand today? Will he defend the Bush Administration’s policies?

Civil Rights and Access to the Ballot Box
Historically the Justice Department has sought to protect the civil rights of minorities and increase their access to the ballot box. But under Gonzales, the department instead pursued bogus charges of “voter fraud” and brought politically motivated charges against candidates during the run-up to elections. Instead of the Justice Department enforcing the laws intended to enfranchise and protect voters, it appears that DOJ has been selectively twisting its enforcement based on partisan politics. Where does Mukasey stand on civil rights, including voting rights? How will he rebuild a division of the Justice Department that has seen mass resignations over its policies and selective enforcement strategies? How will he re-focus its efforts?

Warantless Wiretapping
Gonzales was deeply involved in creating and defending the Bush Administration’s decision to allow the National Security Agency (NSA) to engage in domestic eavesdropping without warrants, in direct violation of federal laws which plainly prohibit domestic spying without a warrant. Where does Mukasey stand on the issue? Will he provide information about the workings of the program that Gonzales refused to provide? How will he enforce the clear will of Congress on this issue?

Judicial Nominees and the Giuliani Campaign
Mukasey serves on GOP presidential candidate Rudy Giuliani’s “selection committee” for judicial nominees, a political issue of critical importance to the far-right wing base of his party. Giuliani established the committee to convince right-wing GOP voters that as President, he would nominate ultraconservative judges to the Supreme Court and other federal court posts. How will Mukasey make the transition from his role as an adviser to a presidential candidate to nonpartisan, nonpolitical lawyer? How will he advise President Bush on his remaining nominations to the federal bench?

Conclusion
Americans deserve to know that the next Attorney General will hold the country and its laws above partisan politics, and that he will truly be the people’s lawyer. It’s up to the Senators who will be asked to confirm his nomination to ask the hard questions and hold Michael Mukasey’s record, opinions and beliefs to the hard light of public scrutiny.

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